Executive Summary

On November 3, 1998, Washington state voters passed Initiative 200, the Washington State Civil Rights Initiative. The measure passed by 58.2 percent of the 1.9 million votes cast, winning majorities in all counties except King and in all parts of that county except Seattle.

This Policy Brief examines how effectively Initiative 200 has been implemented since it became law. As a standard of comparison, the Brief looks at how similarly-worded Proposition 209 was implemented in California. In general, we found that Governor Gary Locke took a much more timid approach to the implementation of Initiative 200 than Governor Pete Wilson had taken with the California measure.

To address the implementation of Initiative 200, this Policy Brief then sets forth nine specific steps state and local officials can take to improve the effectiveness of the new law, and thus keep faith with the voters’ decision. Three examples are: first, the state should review all polices and procedures that grant or have granted preferential treatment based on race or gender and make them available for public review; second, the state should remove the race-identity box on job and school applications; third, all state agencies should remove existing regulations that do not comply with Initiative 200. These and other actions are outlined more fully in the Brief.

Also, the Policy Brief addresses questions about the race- and gender-based laws that are still on the books. Should programs like the Office of Women and Minority Owned Businesses continue as before, with current levels of budget and staffing? What will happen to statutes developed over the last three decades that support preferential treatment? Why does the state continue to count its employees by race, when making decisions based on this information is now illegal?

The Brief concludes that if these steps are taken and Initiative 200 is implemented energetically, Washington can become a leader in affirming and celebrating the individual achievements of its citizens, not setting pre-determined group results.

I. Introduction

On November 3, 1998, the voters of Washington state ushered in a new era in civil rights. The passage of Initiative 200 prohibits for the first time the past practice of preferential treatment based on race or gender in public contracting, public hiring and public education. The new law provides that, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Similar in wording to California’s Proposition 209, the purpose of Initiative 200 is to remove the state’s long-established policies based on race and gender to make state law reflect the principle of equal justice under the law.

Since their passage, however, these two measures have been implemented in different ways. This study will first examine how Proposition 209 was implemented, then compare this with steps taken by Washington’s governor to implement Initiative 200. Next, the study will lay out nine specific steps Washington’s state and local governments can take to insure full implementation of this new civil rights law.

II. The California experience

After Proposition 209 passed in November 1996, California Governor Pete Wilson issued an Executive Order that guided state agencies, commissions, departments and boards in implementing the new law. With Attorney General Dan Lungren, Governor Wilson actively assisted state agencies and other government entities in removing preference statutes and laws from the books.

Below is a summary of steps taken by Governor Wilson outlined in executive order W-136-96 of November 6, 1996, which directed the California state government in implementing Proposition 209:

1. Ordered the identification and elimination of all state statutes and programs that granted or encouraged preferences based on race, gender, or ethnicity in the operation of public employment, public education, public contracting.
2. Directed all state agencies, departments, boards and commissions to submit a list of such statutes and programs to the Governor’s Office within three weeks.
3. Created regulations prohibiting any discrimination or preferences based on race, gender, or ethnicity in any legally permissible "equal opportunity" program in the operation of public employment, public education or public contracting.
4. Directed state government to specify measures to recruit qualified applicants from all segments of the workforce and to monitor hiring practices on a regular basis to assure non-discrimination.
5. Directed every state agency, department, board and commission that had administered a preference program to submit recommendations for replacing that program with a policy of equal treatment of all California citizens.

These concrete actions by California’s governor offer a sharp contrast to the steps taken two years later in Washington. A review of Governor Locke’s implementation of Initiative 200 will highlight these differences.

III. Washington state moves toward individual opportunity

Thirty years ago, state policies were created to grant preferential treatment to certain groups with respect to hiring and the awarding of state contracts. Eventually, these policies established race- and gender-based timetables, goals and set-asides.1 Washington voters overturned these policies in November 1998 when they passed Initiative 200. The measure passed with 58.2 percent or 1,099,410 "yes" votes out of the nearly 1.9 million votes cast.2 It passed in every county except King County and in all parts of that county except Seattle.3 Initiative 200 marked the first time in the state’s history that a major civil rights law was enacted by direct popular vote.

As in California, it fell to the state executive to implement the new law. On December 3, 1998, Governor Gary Locke issued Directive No. 98-01 to guide state agencies in banning the use of preferential treatment in state hiring and contracting. While a step in the right direction, a close analysis of Governor Locke’s directive reveals his timidity in fully implementing the new law. For example, Governor Locke states, "Race, sex, color, ethnicity and national origin may not be used in final selection of an applicant for public employment, unless allowed under section 4 of I-200. . . " [emphasis added]. His directive, however, permits goals for race- and gender-based contracting to continue as before, in spite of the new law. What Governor Locke means by "goals" is unclear.

It appears that Governor Locke’s interpretation will permit the state to discriminate among citizens based on race and gender throughout the hiring or contracting process, except when state managers are at the point of making a final decision.

Opponents of Initiative 200 believe race and gender goals are consistent with the new law provided they are not used to make final decisions in hiring or awarding contracts. According to Governor Locke, goals can be justified as "outreach" efforts allowed by Initiative 200.4 In contrast, proponents of Initiative 200 insist that a fully accurate reading of Initiative 200 does not permit programs that give one person a direct and unwarranted advantage over another at any stage of the employment or contracting process, especially if that advantage is based on race or gender preferences.

Other aspects of the Governor’s directive are also more timid than the vigorous compliance efforts conducted by Governor Wilson. Table 1 illustrates the differences in approach.

TABLE 1: Comparison of Gov. Wilson’s and Gov. Locke’s Civil Rights Actions

    Wilson’s Exec. Order W-136-96, Nov. 1996
    Locke’s Directive No. 98-01, Dec. 1998

The unifying principle in a multiracial society is equality under the law, not group preferences. No comparable action.

All state agencies must submit any policies that granted preferences before the passage of Proposition 209 to the Governor’s office for review and termination. Instructs agencies to review policies internally; however, agencies are not required to submit policies to Governor’s office for review.

All state agencies, boards, departments and commissions are prohibited from using any equal opportunity programs that grant preferential treatment in hiring. Initial consideration of race, sex, color, ethnicity or national origin may continue through outreach efforts. No comparable aggressive action to end equal opportunity programs that grant preferential treatment.

Orders hiring, contracting and college admissions outreach efforts be directed to all citizens regardless of race or gender. No comparable action.

IV. Nine steps to compliance: Further actions the state can take

Governor Locke’s directive is a welcome start toward full implementation of Initiative 200. The directive, though, is mainly a "beginning step" because it provides only general direction.

It therefore falls to each state agency, college and local government entity to

initiate the removal of its practices and procedures that are inconsistent with the new law. The following recommendations for compliance are easy to accomplish and represent a start.

1. Identify programs and statutes that grant preferential treatment

Governor Locke should direct all state agencies, commissions, departments and boards to identify statutes and programs that grant or encourage preferences as outlined in Initiative 200, and to submit to the Governor’s Office within three weeks a list of such programs or statutes that should be eliminated or changed.

Recognizing that some programs require goals and quotas as a condition for federal funds, Initiative 200 exempts agency actions that are required to maintain eligibility under federal programs.5 Governor Locke should direct that such programs specifically be identified and the basis for continuing race preferences be justified in writing.

The Governor’s office should make all responses to the above directive

available to the public. By providing openness to the process, these steps will insure that everyone knows what the rules are and that a uniform analysis of the requirements of Initiative 200 has been adopted.

2. Remove barriers to opportunity that are not based on race

Many barriers to advancement of underprivileged individuals are not based on race. Because there is a sense that a disproportionate number of minorities fall within the category of "underprivileged" groups, all such barriers should be reexamined and alternatives considered.

For example, expensive bonding requirements may bar otherwise qualified contractors from getting "starter" jobs. Historically, bonding requirements have been a major barrier to minority businesses as well as to other small businesses trying to establish themselves. On small jobs, a flexible and creative approach may determine that the legitimate public interest can be protected without erecting barriers to small entrepreneurs. Other barriers to minority opportunity include licensing requirements, unnecessary business regulations, unrelated educational requirements and the like.6

The Governor and leaders of government at all levels should identify such barriers and propose legislation to remove them.

3. Promote equal opportunity for all

Governor Locke should require all state agencies, departments, boards, and commissions that encouraged or granted preferential treatment before the passage of Initiative 200 to submit recommendations on how to promote equal opportunity for all regardless of race, sex, color, ethnicity or national origin.

Although Initiative 200 permits outreach and recruitment, such efforts must be carefully tailored to make sure that: first, an adequate number of jobs and contract opportunities are available to all; second, there is no implicit discouragement to any citizen to apply; and third, once an opportunity is available, all applicants are treated equally under the same race-neutral standards.

4. Create diversity of opinion on affirmative action commission

To reflect the will of the voters accurately, Governor Locke should appoint two or more supporters of the passage of Initiative 200 to his commission on affirmative action. At present, the committee is entirely made up of individuals who enforced and supported the state’s pre-Initiative 200 race- and gender-based programs. A more balanced view is now needed to advise the Governor on civil rights policy.

5. Repeal inconsistent executive orders

Governor Locke should repeal former Governors Dan Evans’ and Mike Lowry’s executive orders (EO 72-07 and EO 93-07) on implementing affirmative action in state government. These are outdated and directly conflict with the new civil rights law. Cancelling them would avoid confusion and help establish a consistent state policy of non-discrimination and non-preference.

6. Remove race counting in state government

If race is no longer a factor in public hiring, contracting and admissions, why are citizens still asked to "check the box" on government forms and applications for race classification? Boxes indicating the applicant’s race should be removed from state applications. An increasing number of applicants are checking more than one box, because many people feel they do not fall into the government’s predetermined racial categories. Others resent being forced to identify themselves as anything other than simply American. Also, some applicants do not check any box because they fear their race will be used against them if they give this information.

It is a basic premise in employment law that if an employer asks a question he or she intends to use that information in making employment decisions. Since race classifications can no longer be used in hiring, contracting, and admissions, the boxes indicating the applicant’s race should be removed from applications. This would make clear that the government does not intend to judge citizens by race.

When considering employment, agencies should discontinue using race- and gender-based preference "institutional tools," such as affirmative action plans and parity summaries. These policies were established to favor some people over others by setting aside or granting race- and gender-based preferences if representation is lower than preset goals.7 Since the preferences they entail are no longer legal, the state should discontinue the effort and expense of preparing them.

7. Define the role of the OMWBE under the new law

Governor Locke should reinvent the Office of Women and Minority Owned Businesses into a smaller, leaner organization limited to federal (not state) affirmative action compliance. Federal affirmative action programs may continue where required as a condition of eligibility for federal funds (section 1(6) of Initiative 200). Maintaining old-style affirmative action required considerable cost. Passage of Initiative 200 should result in real savings in government operations.

8. Request compliance from the entire state government

Governor Locke should formally request state constitutional officers, public universities and other entities not directly under the authority of the executive branch to comply fully with Initiative 200 and to take steps similar to those described above.

9. Remove statutes and policies inconsistent with the new law

Agencies should review all rules and regulations under their purview to make sure existing statutes comply with the new law. For example, WAC 356-09-030 and WAC 356-09-040 were designed to set-up race and gender goals. Other examples include the underutalization tools and parity summaries mentioned previously. All these regulations are still on the books, even though suspended by Initiative 200, and thus are no longer needed.

V. Beginning steps to compliance for local entities

Each local government official, if he or she is to keep faith with the voters, should engage in a similar procedure. To uphold Initiative 200, officials must identify and remove unconstitutional regulations and procedures, eliminate race counting and document for the public all actions taken. Below are suggested steps to begin the process.

•  Review hiring practices to insure no group or individual is given an advantage over another due to race or gender.
• Review contracting polices to insure fair and equal access to all.
• Remove any preferences on the basis of race, sex, national origin, color or ethnicity for the goal of creating a diverse student body.
• Review all other policies or procedures that grant or have granted preferential treatment to make sure they comply with the new law.

VI. Conclusion: Respecting diversity without granting preferences

The state of Washington has a richly diverse population. This diversity is

illustrated by newcomers from various places throughout Asia, Africa and Latin America as well as transplants from New York and California. The benefits of diversity are best achieved by making Washington a place where all citizens are valued for their own unique talents, energies, and abilities. This is what the voters have directed.

Through the passage of Initiative 200 and in their response to opinion polls on affirmative action, Washington’s voters have clearly stated that they want their workplaces, classrooms and communities to reflect diversity without granting preferences to people of one race or gender over another. If implemented correctly, Initiative 200 will make Washington a leader in affirming and celebrating individual achievement, not pre-determined group results.

Appendix:

Initiative 200 statewide vote

About the Author

Robert Holland is a native of Washington and a graduate of Washington State University where he earned a degree in Public Relations. Holland is the Director of the Equal Citizenship Project, which monitors the implementation of Initiative 200, and is a project of the Washington Institute Foundation.

The Equal Citizenship Project was made possible by grants from The John M. Olin Foundation and The Lynde and Harry Bradley Foundation.